TMI Blog1987 (4) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion, Patna at the relevant time). The appellants have been convicted by the High Court for contempt of its order and have been sentenced to a fine of ₹ 50 in default to suffer simple imprisonment for two weeks. The High Court had issued contempt notice against some others also. Those notices were discharged against them. The background facts necessary can be now stated in brief as follows: In the Irrigation Department of the State of Bihar, there existed a post of Public Officer. This post became vacant some time in 1979. One Arun Kumar Verma was appointed to that post for six months. At that time one Kripalu Shanker was discharging the functions of Public Relation Officer. He laid claim to that post. He did not succeed. The Secretary to the Department did not accede to his request. Therefore, he filed C.W.J.C. No. 3632 of 1979. When the case came up for hearing, it was represented on behalf of the State that Shri Verma was appointed only on ad hoc basis for a period of six months and that after the expiry of six months, the matter would be referred to the Public Service Commission for consideration and at that stage the case of Kripalu Shankar also will be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court as C.W.J.C. No. 2354/85 with the allegations that the advertisement was specially drafted to suit only Subh Chandra Jha. The matter was listed for admission on 13.6.1985. During the hearing of this petition the High Court felt on going through the records including the notes file summoned for production by the Court that its direction in C.W.J.C. No. 1534/83 was disregarded and, therefore, rule was issued upon the respondents to show cause why they should not be punished for contempt of the Court for ignoring its order dated 4.5.1983, in the above mentioned writ petition. The State of Bihar and the Commissioner-cum-Secretary, Irrigation Department who were respondent nos. 1 2 before the High Court expressed regret but at the same time contended that no contempt had been committed by them for the reason that expression of views in the notings made on the files whether they were right or wrong did not amount to contempt of court and that no order was passed appointing Subh Chandra Jha after 17.10.1983 to invite any contempt action. The third respondent also pleaded similarly and expressed regret for any omission on his part. The Bihar Service Commission and its Executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once again that the six months period had expired on 17.10.1983. The Public Service Commission and the Special Executive Officer thereof have been proceeded against for granting concurrence to the Ad hoc appointment of Subh Chandra Jha. Subh Chandra Jha himself has been proceeded against for master minding the whole affair. Proceeding is against him too on that score. The proceeding was initiated against A.U. Sharma on the footing that he was the Irrigation Commissioner in October, 1983 when the service of Subh Chandra Jha had to be terminated. That is how the contemners have been proceeded against. The High Court found the officers guilty for the reasons given below in Paragraph 22 of the Judgment, which we read so that the approach of the High Court could be properly appreciated. It is necessary to consider the submission urged by learned Advocate-General on behalf of the officers of the State and the public service commission. The General submission was, that notings did not represent the concluded decision of the Government, and therefore, the officers were not liable for contempt of court. The proposition advanced by learned Advocate General is rather too wide. A Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of notings by officials on the files, expressing their views and to do so would imperil the working of various departments in a Government in a democracy and would have far reaching consequences. Some times a view expressed by an officer may be incorrect. The view so expressed passes through various hands and gets translated into action only at the ultimate stage. The views so expressed are only for internal use. Such views may indicate the line of thinking of a particular officer. Until the views so expressed culminate into an executable order, the question of disobedience of Court s order does not arise. Though the State Government have been found not guilty, the State has filed the appeal to protect its officers from independent and fearless expression of opinion and to see that the order under appeal does not affect the proper functioning of the Government. It cannot be disputed that the appeal raises an important question of law bearing upon the proper functioning of a democratic Government. A Government functions by taking decisions on the strength of views and suggestions expressed by the various officers at different levels, ultimately getting finality at the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... getting them summoned. This would impair the independent functioning of the civil service essential to democracy. This would cause impediments in the fearless expression of opinion by the officers of the Government. The notings on files differ from officer to officer. It may well be that the notes made by a particular officer, in some cases, technically speaking is in disobedience in an order of the Court or may be in violation of such order but a more experienced officer sitting above him can always correct him. To rely upon the notings in a file for the purpose of initiating contempt, in our view, therefore, would be to put the functioning of the Government out of gear. We must guard against being over sensitive, when we come across, objectionable notings made by officers, sometimes out of inexperience, sometimes out of over zealousness and sometimes out of ignorance of the nuances of the question of law involved. Now, the functioning of Government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a council of ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his functions except where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on either in contempt or in defamation. The notings in a notes file do not have behind them the sanction of law as an effective order. It is only an expression of a feeling by the concerned officer on the subject under review. To examine whether contempt is committed or not, what has to be looked into is the ultimate order. A mere expression of a view in notes file cannot be the sole basis for action in contempt. Business of a State is not done by a single officer. It involves a complicated process. In a democratic set up it is conducted through the agency of a large number of officers. That being so, the noting by one officer, will not afford a valid ground to initiate action in contempt. We have thus no hesitation to hold that the expression of opinion in notes file at different levels by concerned officers will not constitute criminal contempt. It would not, in our view, constitute civil contempt either for the same reason as above since mere expression of a view or suggestion will not bring it within the vice of sub-section (c) of Section 2 of the Contempt of Courts Act, 1971, which defines civil contempt. Expression of a view is only a part of the thinking process preceding Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not constitute an order to affect others unless it is done in accordance with Article 166(1) and (2) and communicated to the person concerned. In England, absolute privilege is given to statements made by one officer of a State to another and such statements are protected in the context of law of defamation. Section 123 of the Evidence Act deals with privilege. We have already stated that State communications or acts of State in Public interest, enjoy privilege and if that be so, disclosure in such communications made to the court will not constitute either contempt or defamation. In any case such internal communications enjoy quasi-privilege and a disclosure in such communications cannot be made the basis of an action in contempt. We have seen how the High Court approached the whole question from paragraph 22 extracted early in the Judgment. It is clear that the High Court based its conclusion purely on the notings in the file. The High Court felt that the officers of the Government did not like the orders passed by it and this, according to the High Court, was evident from the files before it. The High Court summed up its conclusion as follows in paragraph 24 of the Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months for making the regular appointment to his post was to expire on 17-10-1983. Long before this date, the Irrigation Department had written to the Public Service Commission stating that the post held by the appellant was an ex-cadre post and that concurrence may be accorded for his appointment. This was an internal letter. The Government sent a requisition to the Public Service Commission for advertising the post on 10-8-1984. The Commission ultimately made the publication on 12-5-1985 stating the eligibility and criteria for selection. It was this publication that promoted the filing of the writ petition in question in which the order that gave rise to the contempt proceeding was passed. Regular appointment pursuant to the advertisement was stayed. The appellant thus continued at the post. According to him he has not disregarded the order of the High Court. The Bihar Public Service Commission gave concurrence for his appointment for six months. The post of P.R.O. being an ex-cadre post since its creation in 1955, the post could not be filled up by giving promotion to anyone working in the department. It was constituted to interview candidates and to recommend a suitable pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocuments he has which relate to the issues in the case. Even if they are confidential, the Court can direct them to be produced when the party in possession does not produce them, for the other side to see or at any rate for the Court to see. When the Court directs production of those documents there is an implied understanding that they will not be used for any other purpose. The production of these documents in ordinary cases is imposed with a limitation that the side for whose purpose documents are summoned by the Court cannot use them for any purpose other than the one relating to the case involved. Miss Harman s case Home office v. Harman, [1981] 2 WLR 310 may give some assistance for this aspect of our discussion. The facts are as follows: Miss Harman, a Solicitor, acted for a criminal, Michael Williams who was in prison serving a long sentence for robbery of the bank. He complained that he was subjected to cruel and unusual punishments while in prison contrary to the Bill of Rights and accordingly brought an action for damages against the Home Office. Miss Harman acted for him as a legal aid counsel. Miss Harman got an order for discovery against the Home Office. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at the hands of this Court in the Judges case, S.P. Gupta Ors. etc. etc. v. Union of India and others etc. etc., [1982] 2 SCR 365. May we say that the legal milestone in Gupta s case, also needs a retreat, a bit. Before parting with this case we would like to observe the need for restraint and care in dealing with the internal files of the Government. We have already indicated its privileged position and limited areas where exposure is permissible of the notings in the file. This is not to say that absolute privilege can be claimed of its exposure and protection from the view of Courts. But what is to be borne in mind is that the notings in the departmental files by the hierarchy of officials are meant for the independent discharge of official duties and not for exposure outside. In a democracy, it is absolutely necessary that its steel frame in the form of civil service is permitted to express itself freely uninfluenced by extraneous considerations. It might well be that even orders of Court come in for adverse remarks by officers dealing with them, confronted with difficult situations to straight away obey such orders. Notings made on such occasions are only for the benef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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